g g Tommi i O iceof-l eg-sl bounsel Of ce of the Assistant Attorney General Washirxglan D C 20530 _February19 2010 MEMORANDUM FOR THE GENERAL Re Lethal Operation Against Shaykh Ariwar Aulaqil i i _ has asked for your views on_ the legelity of the central Agency s imposed use of lethal force in Yemen against Shaykh Anwar Aulaqi a 9H8 citizen whothe CIA assesses is a senior leader_ of AI- Qa ida in the JI Under the-conditions si id factiizil obedicates as represented by the CIA and in the materials ptovided to us from the Intelligence Community we believe that a decisionmaker on the basis of such informatidn could reasonably oonciude that the use of lethal force against A111aQi would not violate the assassination ban in Executive Order 12333 or any applicable constitutidnal limitations due to Aulaqi's United Stateseitizenship This memorandum con rms oral advice setting forth this conclusion I 1' Egg I I 5X3 2 mm IWREIA - m M3 I 1 biwl WTK - - W3 W3 1mm bx-3 ML 1 b 1 W3 3 bxn bus TWR gr 3 - m bun Wk Wanna i i i 1 i 039 3 W5'micOnsistent with l__dllingsm self-defense are not assassinations bx 1 i 2 Section 2 11 of Executive Order 12333 provi les that 1110 person employed by or acting on behalf of the United States Government shall engage in or conspire to engage in assassination 46 Fed Reg 5994 Dec 4 1981 TO RETL 4 J b1 WW The question that remains is whether Aulaqi's 'status'as a U S citizen imposesany in ection '1 sum I -- 1 1 fi'docs notgive o __al__ga _inaa constitutinnai immunity froni attackqi - 7 7_ - _7 7 This conclusion nds support in Supreme Court case 13w addressing whether a U S citizen who acts as an enemy combatant may be subject to the use of certain types of military force See Hamdi v Rumfeld 542 US 507 521-24 2004 plurality opinion cf also Ex parte Quin'n 31 US 1 37-38 1942 who associate themselves- nth the military'arm of the enemy government lmown that Ehe individual Wu 9% W and with its aid guidance and direction enter the United S_tatesL bent dniiogtile acts may be treated as enemy belligerents under the law of war _ Because Aulaqi IS a U citizen the Fifth Amendment s Due Process Clause as wellas the Fourth Amendment likely applies 111 some respects even while he is abroad in this case in Yemen See Reid v Covert 354 US 1 5 6 1957 plurality opinion United States v Verdugo-Urquidez 494 US 25 9 269-70 1990 see also In re Terrorist Bombings ofUS Embassies in East A ica 552 F 3d 157 167 68 2d Cir 2003 In Hamdz a plurality of the Supreme Court used the Mathews v Eldridge balancing test to outline the due process rights of a US citizen captured on the battle eld in Afghanistan and detained in the United States explaining that the process due in any given instance is determined by weighing ftlie private interest that will be affected by the of cial action against the Government's asserted interest including the function involved and the burdens the Government would face In providing greater process Hamdi 542 at 529 plurality opinion quoting Mathews v Eldridge 424 US 319 335 1976 l 7 77 MB libl llb 5 7 7i 7 7 777 lthe plurality in Hamdi stated that t he parties agree that initial captures oh the badletield need not receive the process we discuss here that process is due only when the determination is made to continue to hold those who have been seized and the plurality thus found it unlikely that this basic process will have the dire irnpaCt on the central functions ofwarmaking that the Government forecasts 542 U S at 534 plurality opinion ion the battle eld the -- 7 77 b 1 Govemment interests and b1 lrdens preclude offering a process to judge whether a detainee IS 030 3 truly an enemy combatant_ the case of a member associate or af liate of al- -Qa ida operating abroad in_ circumstances where capture is infeasible and it is bill bontinued and imminent threat 7 given the weight of thegovernnient s interest 7in7using an memans ot'77fb7rce to7re5poncl77to an imminent threat posedby the actiyities 01f a person operating as a member associate or af liate Of an enemy force lto the extent Fourth Amendment principles are relevant in the context of operations against a U S person who is a member of al- l Qa ida and whose activities pose a continued and imminent threat the proposed lethal operation would not violate the Fourth mendrnenhl in rdugo- Urquidez 494 U S at 273- 74 981mb 77 7 7 7-55 6 W0 'T Ohm - -- We mo Application of the Fourth Amendment to these circumstances foreign policy operations could signi cantly disrupt the ability ofthe political branches torespond to foreign situations 7 involving omnational intezest This conciusion draws further support from the fact that even in domestic law enforcement operations the Supreme Court hag noted that if the suspect threatens the of cer with a weapon or there is probable cause to believe that he has committed a crime involving the in iction or threatened in iction of serious physical harm deadly force may be used if necessary to prevent escape and if wherejeasible sonic warninghas been given Tennessee v quergjl U S V Where ja capture operation is infeasible-and the ti-W targeted person is part ofa dangerous eneniy force and poses a continued and to Egg I versons or interests the userof lethal force would not vioiate the Fourth Amendment - 15 W3 W5 1 For these reasons and on these understandings we do not beheve the Constitution prohibits the proposed lethal does not violate the assassination ban in Executive Order 12333 gig Please let us know if we'can be of further assistance U I David J on Acting Assistant Attorney General weather i 7 W1 W3